Dutch Civil Code

Book 5 Real property rights

Title 5.4 Rights and duties of owners of neighbouring premises

Article 5:37 Private nuisance
The owner of immovable property may not, to a degree or in a way that is unlawful according to Article 6:162 of the Civil Code, cause nuisance to owners of other immovable properties by instigating sounds, vibrations, smells, smoke or gases or by denying these owners daylight or fresh air or by taking away the support of buildings or constructions.

Article 5:38 Water disposal
Water that by nature streams downwards from higher located premises must be received (accepted) by lower located premises.

Article 5:39 Alteration of the course of (flowing) water
The owner of immovable property may not, to a degree or in a way that is unlawful according to Article 6:162 of the Civil Code, cause nuisance to owners of other immovable properties by altering the course, quantity or quality of water that is flowing over his property or of the ground water or by making use of water on his land that has an open connection with water on the land of others.

Article 5:40 Streaming water
- 1. The owner of an immovable property adjoining public or streaming water may use that water for flushing, sprinkling and irrigating his land, for watering his cattle or for similar purposes, provided that this does not cause nuisance to the owners of other premises to a degree or in a way which is unlawful according to Article 6:162 of the Civil Code.
- 2. If it concerns public water, then the previous paragraph only applies as far as the function of that water does not oppose against such use.

Article 5:41 Derogation by Municipal Ordinance
It is possible to derogate from Articles 5:38, 5:39 and 5:40 paragraph 1 by means of a Municipal Ordinance.

Article 5:42 Vegetation near the boundary line of someone else's premises
- 1. It is not permitted to have trees, bushes or hedges within a distance as referred to in paragraph 2 of the boundary line of another person's immovable property, unless the owner of that property has given his approval to this end or that property is a public road or public water.
- 2. The allowed distance referred to in paragraph 1 is for trees two meters, to be measured from the middle of the foot of the tree trunk, and for bushes and hedges half a meter, unless a smaller distance is allowed under a Municipal Ordinance or on the basis of local common practice.
- 3. A neighbour may never oppose against the presence of trees, bushes or hedges that do not reach higher than the partition wall between the two premises.
- 4. When a situation is unlawful by virtue of this Article, the offender only has to compensate the damage suffered from the day that he should have ended the unlawful situation according to a letter of formal notice (warning) received by him.

Article 5:43 Definition of a 'wall'
For the purpose of the present and next Title a 'wall' is understood as every, non-transparent partition manufactured of stone, wood or another substance suitable for this purpose.

Article 5:44 Vegetation hanging over and roots shooting through
- 1. If a neighbour whose vegetation hangs over someone else's immovable property, does not cut and remove the hanging over vegetation in spite of a letter of formal notice (warning) of the owner of that property, then this owner is entitled to cut and remove the hanging over vegetation himself without authorisation of his neighbour.
- 2. When roots of plants (vegetation) from the neighbour’s land shoot through someone else's land, the owner of that land may cut and remove them at the spot where they enter his land.

Article 5:45 Falling down fruits
Fruits from trees on a land that fall on the neighbouring land belong to the person who is entitled to the fruits of that neighbouring land.

Article 5:46 Stake out marks
The owner of immovable property may at any time demand from the owner of the neighbouring property that visible stake out marks are put on the boundary between their properties or, if necessary, that the existing ones are renewed. The owners shall contribute for equal parts in the costs made in order to observe this rule.

Article 5:47 Determining the boundary by court order
- 1. If the boundary between two immovable properties is uncertain, each of the owners of these properties may at all times demand that the court shall determine the boundary.
- 2. The legal presumption that the possessor of a thing is the owner of that thing does not apply when it is uncertain where the boundary between two immovable properties is situated.
- 3. At the occasion of determining (assessing) the boundary the court may, depending on the circumstances, divide the area with regard to which the owners are uncertain into equal or unequal parts or assign the entire area to one of the parties, with or without granting a financial compensation to one of the parties.

Article 5:48 Fencing off land
The owner is entitled to fence off his immovable property.

Article 5:49 Partition wall
- 1. Each of the owners of neighbouring lands situated in an uninterrupted built-up area of a Municipality may at all times demand that the other owner cooperates in setting up a partition wall on the boundary between their properties of two meters height, as far as a Municipal Ordinance or a local common practice does not provide for a different height for such a partition. The owners contribute for equal parts in the costs of the partition.
- 2. The previous paragraph is not applicable if one of the immovable properties is a public road or public water.

Article 5:50 Windows and balconies
- 1. Unless the owner of the neighbouring land has given his approval to this end, it is not permitted to have windows or other wall openings or balconies or similar constructions within two meters of the boundary line of the neighbouring land as far as these openings or constructions give view on that property.
- 2. The neighbour cannot oppose against the presence of such openings or constructions if his land is a public road or a public water or if such a road or water is located between the lands of both neighbours or if the view on his property does not reach further than to a wall on his land that is standing within two meters of the opening or construction. Openings and constructions that are permitted on account of the previous sentence continue to be permitted even after the involved land has lost its public function or after the wall has been removed.
- 3. The distance meant in the present Article is measured rectangular from the outside of the wall where the opening has been made or from the outer edge of the construction facing the neighbouring land on the one side to the boundary line of that neighbouring land or the wall on that property on the other side.
- 4. When, as a result of a prescription, the owner of a land has no longer a right of action to demand the removal of an opening or construction that is present on the neighbouring land in disagreement with the previous paragraphs, he may not set up buildings or other works on his property within a distance of two meters of that opening or construction if this would cause unreasonable nuisance to his neighbour, except when such a building or work was already standing there before the expiration of the prescription period
- 5. To the point that a situation is not permitted under the present Article, the offender only has to compensate the damage suffered from the day that he should have ended the unlawful situation according to a letter of formal notice (warning) received by him.

Article 5:51 Non-transparent windows
It is always permitted to make openings in walls, even in those within a distance as meant in the previous Article, for the passage of daylight, provided that an non-transparent window is permanently affixed to these openings.

Article 5:52 Water outlet
- 1. An owner of immovable property is compelled to arrange the roofing of his buildings and constructions in such a way that the water on it will not flow to someone else's land.
- 2. Water may be disposed onto a public road if this is not prohibited by law or a Municipal Ordinance.

Article 5:53 Duty to keep water and garbage away from someone else’s gutter
An owner must ensure that no water or garbage from his land enters into a gutter on someone else's land.

Article 5:54 A building partly on, above or under someone else's land
- 1. When a building or construction has been built partly on, above or under the land of someone else and the removal of the protruding part would be disproportionately more harmful for the owner of that building or construction than its preservation would be harmful for the owner of the neighbouring land, then the owner of the building or construction may at all times demand that, against payment of a financial compensation, an easement is granted to him on the neighbouring land in order to maintain the existing situation or that, at the choice of the owner of the neighbouring land, the required part of that land is transferred to him.
- 2. The previous paragraph applies accordingly when a building or construction after a period of time has started to lean over above someone else's land.
- 3. The previous paragraphs do not apply if the use of space on, above or under someone else's land results from an obligation, arising from law or a juridical act, to tolerate the existing situation or if the owner of the building or construction acted in bad faith or with gross negligence when creating or acquiring the protruding part.

Article 5:55 Threat of collapse
If due to a threatening collapse of a building or construction a neighbouring land is endangered, the owner of that land may demand at all times that measures are to be taken in order to end the danger.

Article 5:56 Temporary use of someone else's immovable property
When, in order to be able to perform activities on behalf of an immovable property, it is necessary to use another immovable property temporarily, then the owner of this last property must allow, against the collection of a financial compensation, that his immovable property is used for this purpose, provided that he has been notified properly in advance, unless he has important reasons to refuse or postpone such usage of his property.

Article 5:57 Pointing out an access route
- 1. Where a land has no proper access to a public road or a public waterway, its owner may at all times demand from the owner of a neighbouring land that this owner points out an access route on (over) his land on behalf of the land that lacks access, against financial compensation, paid or secured in advance, covering the damage that is or will be suffered by that owner on account of the access route.
- 2. If unforeseen circumstances arise after the access route has been pointed out and the owner of the neighbouring land, as a result thereof, suffers more damage than reckoned with when calculating the compensation referred to in paragraph 1, the court may raise the amount of the before meant compensation.
- 3. When pointing out the access route the interests of the closed in land to get access to the public road or public waterway along the shortest route has to be taken into account as well as the interest of the neighbouring land to suffer the least possible inconvenience of the access route. If a land which adjoined a public road or which had reasonable access to such a road, has been split up by a juridical act in several land plots belonging to different owners and one of the split off lands has, as a result thereof, no access to a public road, then the land plots that used to be one land shall be considered firstly to be burdened with an access route.
- 4. When a change in local circumstances makes this desirable, the access route may be diverted on demand of an immediately interested owner.
- 5. The right to an access route ends, regardless how long it has existed, as soon as such a route is no longer necessary.

Article 5:58 Necessary water supply system
- 1. The owner of land who wants to receive by means of a supply system water that is at his disposal at another place, may demand that the owners of the neighbouring lands tolerate that the pipes of this system go under, through or over their lands, against the payment in advance of compensatory damages or the provision of security for this purpose.
- 2. In that event, the last four paragraphs of the previous Article apply accordingly.

Article 5:59 Boundary under a non-navigable water stream
- 1. When the boundary between two lands is situated in a lengthwise direction under a non-navigable flowing water, ditch, canal or similar water stream, then each of the owners of these lands have the same rights and duties over the entire width (distance across) of that water stream as a co-owner. Every owner is compelled to maintain the embankment situated at his land.
- 2. Each owner has the right and duty to receive on his land his part of what is removed from the water stream for maintenance.
- 3. Where the owners of the lands have made other arrangements, also their legal successors shall be bound by these arrangements.